Why Proper Trial Prep Doesn't Matter

It's Wednesday at 1:45 p.m. I'm due back in court at 2:00 p.m. We are smack in the middle of my trial and on a lunch break. The current witness on the stand had finished her direct examination and the cross examination would continue after lunch.

However, that witness jumped off the witness stand as soon as she was excused for lunch. She jumped off without waiting for my instructions on what time to return and where to meet. 1:45 p.m. and all my phone calls to her are going to voicemail. If she doesn't show, the judge will tell the jury to disregard her entire testimony.

The doctor was supposed to come in at 1:00 to prepare his testimony for the afternoon. His office told me he left at 1:15. It's a ten minute ride with traffic. Still not here.

The stabbing victim and another witness were supposed to be in the office at 1:00 as well. They would testify after the doctor. Nowhere to be found.

Fifteen minutes until I'm supposed to continue the trial and I don't have any witnesses. Is it time to panic?

2:00 p.m. and I'm waiting outside the courtroom. The current witness on the stand saunters in and resumes testimony. At 2:45 the doctor appears and testifies. Shortly after, the next two witness show up and testify. Despite my arrangements and meticulous preparation everyone showed up late. As it happened their tardiness didn't affect the flow of the trial or the testimony.

Welcome to trial. No matter the preparation and arrangements, you can rarely control the situation. You can only control your stress level. Check back this weekend to see the result.

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Trial this Week

Six jurors selected and ready to go. Six more needed and two alternates. While I continue our trial this week, I thought I'd share a story I loved from the weekend.

A warden's wife helps an inmate escape and takes up residence with him? I thought this only happened in short stories and novels. Turns out fiction and reality merged in the Oklahoma prison system in 1994.

On a trial note - this case lasted for four months! 80 witnesses and 800 pieces of evidence! And I thought my week-long, twelve witness trial was taking a lot out of me.

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So You Want to Avoid Jury Duty?

I'm sticking with my jury selection theme this week.

Whenever I meet someone and they ask what I do for a living, one of two things inevitably happens. They either ask my legal opinion on an issue plaguing their life or they ask how to get out of jury duty.

As a trial lawyer, my conscience won't allow me to give out the top secret hints to avoid jury duty and as a prosecutor most times I lack the expertise in civil law to answer the legal question. I know what you're thinking - I'm a riot at cocktail parties. Before you judge, let me explain. In my experience, the people who are actively seeking to avoid jury duty would make the best jurors.

If you were accused of a crime and had decided to take it to trial, would you want rational and reasonable people thinking up excuses to avoid hearing the evidence against you? The system functions most effectively when twelve of our best citizens sit in a room and debate the evidence presented to determine if the defendant committed a crime beyond a reasonable doubt. Often the prospective jurors seeking to avoid service are those in a position of great responsibility at a job or at home who are required to evaluate credibility on a daily basis. What better jurors are there?

Those people who are creative enough to think of reasons to avoid the supposed inconvenience could instead use their abilities on a jury. It is frustrating as an attorney to watch juror after potential juror seek the court's permission to avoid serving. In every trial, I watch the judge agree to make tremendous scheduling accommodations which would address a juror's concern (be it work, childcare, doctor's appointments) only to watch as other reasons are then proffered until the judge relents and lets the person out of serving.

Before you consider trying to avoid jury duty because it's inconvenient, please think about whether you would want someone like you as a juror if you were on trial. If not, just raise your hand and we'll get you out of there.

One judge I know says this to jurors: There are only four times you are called to serve your country - 1) voting, 2) military duty, 3) pay taxes, and 4) jury service. Jury service is the best forum for a person to actually participate in the government system as a citizen. He says it is a privilege as well as a right of all citizens. I couldn't agree more.

There are many reasons that one cannot serve on a jury - family responsibilities, already paid-for trips, health reasons, and financial hardships. Speaking as a trial lawyer, please just consider whether your reason is really a hardship or simply an excuse to avoid an inconvenience. A right to a jury trial that is guaranteed to all under the Constitution cannot function without willing jurors.

By the way, are you wondering the best excuse I've heard yet? It was during an attempted murder trial and we were questioning jurors who have issues with serving individually in the jury room before doing group questioning of a panel.

Judge: Do you have an issue with serving on the jury?
Prospective Juror: Yes. I've got health problems.
Judge: Sorry to hear that. We just need to put them on the record. Can you tell us what they are
Prospective Juror: I can't hear out of one ear.
Judge: Which one?
Prospective Juror: I don't know.
She was excused for other reasons aside from health problems.

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Jury Selection

As I prepare for trial next week, it seems a good time to reflect on the process of jury selection. It is the first part of the trial and is probably the most confusing to the general public. Every courtroom drama shows the opening statements, direct and cross examination of witnesses, and closing arguments. You rarely see jury selection.

Most lawyers will tell you that your case is won or lost in jury selection. Then again, most lawyers tell you the same thing about an opening statement. And again about proper preparation. There's plenty of advice out there. While I don't think a case is won in any one phase, I do agree it can be lost in any of them.

This is about a criminal case. Jury selection is much different and more informal in a civil case.

First, about 75 prospective jurors are brought into the courtroom. The judge then goes through some preliminary questions with all of them that will allow the judge to screen out a number of people after the jurors tell the judge about their pending vacations, family illnesses, work problems, or any other reason they do not want to serve.

Once those jurors are whittled down to about 40, the court clerk puts the remaining jurors in a bingo ball system. The metal ball is spun (seriously) and the first jurors picked are placed in the jury box. The number of jurors chosen for questioning depends on the courtroom and how many chairs there are.

The judge then goes through her general background questions with each individual juror called into the jury box in front of the attorneys and the defendant. Once that is done, the prosecutor (me) is allowed to ask questions to the jurors. The questions are usually based on the law of the case or whether a juror has some preconceived prejudice towards a certain subject that will come up in the case (gun control, the harshness of drug laws, DWI laws, etc.).

The defense attorney then will question the panel about whether they will hold the prosecution to their burden and view their client as innocent until proven guilty. The judge generally puts a time limit on the questioning for each side. I agree with the limits in most cases as some lawyers, including me, can be a little long-winded.

Then the attorneys, the judge, the clerk, and the defendant congregate and discuss the potential jurors. The prosecutor goes first and puts forth their challenges for cause. This means the prosecutor is asking to dismiss a particular juror because the law says they are not qualified for this case under the law based on their responses. The defense then argues their challenges for cause. These types of challenges are unlimited.

The prosecutor then uses peremptory challenges. This is where the prosecutor can get rid of a juror for any non-discriminatory related reason. The defense attorney then uses theirs. There are only a certain number of these challenges which varies depending on the type of case (there are 20 for each side in a murder case for example).

The jurors left are selected as the jurors for the case. The clerk then picks more names out of the bingo ball for the next panel from the jurors left in the audience. The process repeats until there are 12 jurors and at least 1 alternate chosen. If they need more, they call up another panel and start over.

Jury selection is my favorite part of the trial because it is the only time you get to interact with the jurors. After they are selected, there is no more talking to them. A lot of attorneys are terrified of it because you have no idea what the juror's responses will be. While it can be scary when faced with a question or comment you were not expecting, it's also fun because you really get to see how good you are thinking on your feet and interacting with the general public.

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On the French and Indian War, and other things

Another round in our Pro Se section. Our subject today claimed to have fought in the War of 1812 and the French and Indian War on the side of the Native Americans. These claims were made once the defendant was in custody on . . . you guessed it - DWI. His second one in ten years which makes it a felony. After failing the sobriety tests and the breathalyzer, Mr. defendant told the police about how he scalped many settlers during those wars.

Now that's some good evidence for a DWI case, which probably helped convince the defendant to plead guilty. It's even better when we saw Mr. defendant walk into court for sentencing on his felony DWI wearing a different type of shoe on each foot with each one its own color. A gift from deceased settlers perhaps?

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Statistics and Animosity

Check out this article from the New York Post.

You'll remember in a previous blog post I talked about how a case moves from crime to trial. The New York Post article provides a good illustration of the path I discussed in action.

The article says that the Bronx District Attorney's Office (BXDA) threw out 17.3% of the 43,520 arrests from January 1 through July 22 of this year. New York City's system is a different beast from the rest of the state so please allow me to explain a little. I've been a prosecutor in NYC and outside of it and am speaking from experience in both systems.

In NYC, the police make an arrest and the case is required to be brought to the BXDA's Office for processing. This is unlike the rest of New York State where the police make an arrest and do all the processing without notifying the District Attorney's Office.

At the BXDA, ADA's are waiting in the complaint room to draft the charges and file the paperwork. The ADA's speak with police officers and any witnesses the police bring. Victims are usually required to come to the complaint room and speak directly to an ADA before a case will be drafted. There are exceptions of course in serious assault cases. A large number of cases that come through the complaint room are "victimless" crimes, where the police see illegal activity and make an arrest (drugs, DWI, weapons).

An ADA's job in the complaint room is to screen the case. We look for: 1) whether the police acted legally in securing evidence, 2) whether the victims are cooperative, 3) and whether we can prove the charges beyond a reasonable doubt, among other things.

The People decline to prosecute a case for a number of reasons - a search and seizure that violates a person's rights, a victim doesn't want to pursue the case, or there is simply not enough evidence yet. In many cases, drugs or another weapon are found on the ground and no one saw who put it there but the people standing by it are arrested. This is an example of a case with insufficient evidence of possession. Any case an ADA declines to prosecute is approved by a supervisor, a second pair of eyes.

The officer who fumed that the BXDA is "letting dangerous people back out on the street again and again, instead of making even the slightest effort to build a case against them" should think about the role of a police officer. ADA's routinely send officers back out on the streets after screening a case and before filing charges to gather additional evidence, find additional witnesses, or to conduct additional questioning of a defendant. The mentality should not be to arrest and charge first and investigate later. It should be to investigate first and then arrest.

An investigation obviously continues after the charges are filed and continues through trial. But that is generally subpoenas, search warrants, and gathering records. The brunt of the investigation should be done prior to an arrest.

The role of a District Attorney is to do justice. It is not to send a message to a certain person, prosecute bad guys with no evidence simply because we know they are bad, or to prosecute people where the evidence will be suppressed because the police acted illegally. Declining to prosecute a case is a difficult decision and I applaud the men and women who have the courage to get rid of a case before the legal system grinds a defendant into its slow-moving gears for a case that cannot be sustained.

I try not to monday morning quarterback police officers either (If any of you are reading I really do try). They are the ones on the street at midnight dealing with gun-toting drug dealers or walking into explosive domestic situations where both parties are drunk and wielding knives. They must make instantaneous decisions without the benefit of getting legal guidance. Mistakes are sometimes made in those split second moments and a judge with the benefit of hindsight can call an officer's action illegal. My goal is to instruct the cops the extra steps to take when the situation invariably comes up again.

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